Citation Nr: 0107724
Decision Date: 03/15/01 Archive Date: 03/21/01
DOCKET NO. 97-21 196 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Whether there is new and material evidence to reopen a claim
of entitlement to service connection for a left foot bleeding
ulcer.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Richard A. Cohn, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1967 to December
1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office in No.
Little Rock, Arkansas (RO) which found no new and material
evidence to support reopening the veteran's claimed
entitlement to service connection for a left foot bleeding
ulcer.
REMAND
Review of the record discloses that additional RO action is
required prior to further Board review of the veteran's
claim.
The RO should determine whether the veteran still wants a
hearing before the RO. In his November 1996 notice of
disagreement and during an August 1997 telephone contact with
the RO, the veteran requested a RO hearing in this appeal.
Although the claims file shows that the veteran also
requested then canceled hearings before the Board both at the
RO and at VA headquarters in Washington, DC, there is no
showing that the veteran sought to withdraw his requests for
an RO hearing. Due process precludes the RO from declining
to provide a veteran with a lawfully requested hearing.
After determining whether the veteran still wants an RO
hearing in this matter, the RO should respond appropriately.
The RO should try again to locate a complete set of the
veteran's service medical records (SMRs). The only SMRs
currently associated with the claims file are an immunization
record, reports of physical examinations upon the veteran's
induction and separation and a separation medical history in
which the veteran notes a foot disorder. In October and
November 1996 written statements the veteran identified the
Army unit in which he served in Vietnam in 1967 or 1968 and
where he claims to have sought treatment for a left foot
disorder "at least twice a week." He further stated that
his left foot disorder forced his in-service reassignment
from patrol to kitchen duties. The claims file does not show
whether the RO sought to determine whether the veteran had
been hospitalized in service for this disorder, as suggested
by an April 1997 message from the National Personal Records
Center (NPRC).
The RO should review all evidence pertaining to a left foot
disorder associated with the claims file after a January 1982
rating decision denying service connection for a left foot
disorder. Rating decisions in May 1980 and January 1982
denied service connection for a left foot disorder. After
January 1982, additional evidence associated with the claims
file included records of private hospitalization in April
1994, VA treatment, hospitalizations and X-rays from August
1994 to June 1995 and VA examinations and X-rays including
those of the veteran's feet. In its November 1996 decision
and March 1997 statement of the case the RO did not address
any of this evidence, some of which pertains directly or
indirectly to the matter currently on appeal. The RO should
address this evidence before the Board considers the appeal
further.
New statutory provisions which redefine VA's duty to assist
require additional RO action prior to Board review of this
appeal. See Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000). The new provisions
require VA to make reasonable efforts to assist a veteran to
obtain evidence necessary to substantiate the claim and to
make reasonable efforts to obtain records relevant to the
claim. Id.
In consideration of the foregoing, the Board has determined
that further development of the case is necessary to provide
the veteran due process of law and full consideration of this
appeal. Accordingly, this case is REMANDED for the following
action:
1. The RO should determine whether the
veteran still wants an RO hearing in this
appeal and, if so, schedule a hearing for
him.
2. The RO should try again to locate,
obtain and associate with the claims file
the veteran's SMRs (not already
associated with the claims file) by
determining whether the veteran was
hospitalized in service for a left foot
disorder and, if so, by following the
April 1997 NPRC suggestion for a further
search.
3. Thereafter, the RO should
readjudicate the veteran's claim of new
and material evidence to reopen a claim
of entitlement to service connection for
a left foot bleeding ulcer, addressing
all evidence associated with the claims
file after the January 1982 decision. If
the RO denies the benefit sought on
appeal, it should issue a supplemental
statement of the case and provide the
veteran with a reasonable time within
which to respond. The RO then should
return the case to the Board for final
appellate consideration.
The purpose of this REMAND is to obtain additional
development, and the Board does not now intimate an opinion,
either favorable or unfavorable, as to the merits of the
case. Although the veteran need not take further action
until so notified by the RO, the veteran may submit to the RO
additional evidence and argument pertaining to this remand.
Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999).
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).